Narvaez v. Pershinsky
| Decision Date | 16 April 2020 |
| Docket Number | Index 603205/2017E |
| Citation | 2020 NY Slip Op 34995 (U) |
| Parties | Luisa K. Narvaez, Plaintiff, v. Robert Pershinsky. Cody Robert Pershinsky, Muhammad A. Naqvi and Ali J. Naqvi, Defendants. Motion Seq Nos. 001; MG; CD, 002; MD, 003; MD |
| Court | New York Supreme Court |
Motion Date: 6/5/19
Submitted: 7/10/19
Attorney for Defendants Robert Pershinsky and Cody Robert Pershinsky:
Richard T. Lau & Associates Siben & Siben, LLP
Attornes for Defendants Muhammad A. Naqvi and Ali J. Naqvi:
WILLIAM B. REBOLINI JUSTICE
Upon the following papers read on these electronically filed motions for summary judgment: Notice of Motion and supporting papers by Naqvi defendants, filed April 3, 2019; by Pershinsky defendants, filed April 17, 2019; by Naqvi defendants, filed May 24. 2019; Answering Affidavits and supporting papers by plaintiff, filed June 24, 2019; by Pershinsky defendants, filed July 2. 2019; Replying Affidavits and supporting papers by Naqvi defendants, filed June 28, 2019; by Naqvi defendants, filed June 28, 2019; by Naqvi defendants, filed July 8, 2019; by Naqvi defendants filed August 7, 2019; it is
ORDERED that the motions by defendants Muhammad Naqvi and Ali Naqvi and the motion by defendants Robert Pershinsky and Cody Pershinsky are consolidated for purposes of a determination herein; and it is further ORDERED that the motion by defendants Muhammad Naqvi and Ali Naqvi for summary judgment dismissing the complaint against them based on plaintiffs failure to meet the serious injury threshold of Insurance Law § 5102 (d) is granted; and it is further
ORDERED that the motion by defendants Robert Pershinsky and Cody Pershinsky for summary judgment dismissing the complaint against them based on plaintiffs failure to meet the serious injury threshold of Insurance Law § 5102 (d) is granted; and it is further
ORDERED that the motion by defendants Muhammad Naqvi and Ali Naqvi for summary judgment dismissing the complaint against them on the basis of liability is denied.
This is an action to recover damages for injuries allegedly sustained by plaintiff Luisa Narvaez, as a result of a multi-vehicle accident, which occurred on December 11, 2015, on Bay Shore Road, near its intersection with Brook Avenue, in Babylon, New York. It is alleged that the accident occurred when the vehicle owned by defendant Robert Pershinsky and operated by defendant Cody Pershinsky struck the rear of the vehicle owned by defendant Muhummad Naqvi and operated by defendant Ali Naqvi. The Naqvi vehicle was then propelled forward into the vehicle in which plaintiff was a passenger. Plaintiff alleges, in relevant part, that she suffered various injuries as a result of the motor vehicle accident, including sprains to her right shoulder, right knee, cervical and lumbar regions of her spine, a tear of the anterior labral of her right shoulder, aggravation of degenerative changes to the lumbar region of her spine, and aggravation of dislocaiton of her right hip, post-surgical intervention.
The Naqvi defendants seek an order granting summary judgment dismissing the complaint against them on the ground that plaintiff did not suffer a "serious injury" within the meaning of Insurance Law § 5102 (d). They submit, in support of the motion, copies of the pleadings, the bill of particulars, the transcript of plaintiff s deposition testimony, and the affirmed medical report of orthopedic surgeon Gary Kelman, M.D. In a subsequent motion, the Naqvi defendants move for summary judgment dismissing the complaint against them on the ground Ali Naqvi was not negligent in the operation of his vehicle. They submit, among other things, copies of the pleadings, an uncertified police report, and the transcripts of the deposition testimony of plaintiff, Ali Naqvi, and Cody Pershinsky.
The Pershinsky defendants also seek an order granting summary judgment dismissing plaintiffs complaint on the ground that she did not suffer a "serious injury" within the meaning of Insurance Law § 5102 (d). They submit, in support of the motion, copies of the pleadings, the bill of particulars, and the unaffirmed medical reports of neuroradiologist Michele Rubin, M.D., and radiologists Mehool Shukla, M.D., and Vincent Frazzini, Jr., M.D.
In opposition to the motions, plaintiff argues that successive summaryjudgment motions are strongly disapproved and that a triable issue of fact remains as to whether she sustained a serious injury. Plaintiff submits, among other things, a certified police report, no-fault claim forms, and the affirmed medical reports of Kevin Weiner, M.D., Michele Rubin, M.D., and Felix Karafin, M.D.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [ 1986]; Winegrad v New York Univ. Med. Ctr., 64N.Y.2d 851, 487N.Y.S.2d 316 [ 1985]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v New York Univ. Med. Ctr., supra). Once such proof has been offered, the burden then shifts to the opposing party who must proffer evidence in admissible form and must show facts sufficient to require a trial of any issue of fact to defeat the motion for summary judgment (CPLR 3212 [b]; Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]).
Insurance Law § 5102 (d) defines "serious injury" as "a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."
A defendant seeking summary judgment on the ground that a plaintiffs negligence claim is barred by the No-Fault Insurance Law bears the initial burden of establishing, prima facie, that the plaintiff did not sustain a "serious injury" (Toure v Avis Rent A CarSys., 98 N.Y.2d 345, 746 N.Y.S.2d 865 [2002]; Gaddy v Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990 [1992]; Beltran v Powow Limo, Inc., 98 A.D.3d 1070, 951 N.Y.S.2d 233 [2d Dept 2012]). When such a defendant's motion relies upon the findings of the defendant's own witnesses, those findings must be in admissible form, such as affidavits and affirmations, and not unsworn reports, to demonstrate entitlement to judgment as a matter of law (Brite v Miller, 82 A.D.3d 811, 918 N.Y.S.2d 349 [2d Dept 2011]; Damas v Valdes, 84 A.D.3d 87, 921 N.Y.S.2d 114 [2d Dept 2011], citing Pagano v Kingsbury, 182 A.D.2d 268, 587N.Y.S.2d 692 [2d Dept 1992]). A defendant also may establish entitlement to summary judgment using the plaintiffs deposition testimony and unsworn medical reports and records prepared by the plaintiffs treating medical providers (Uribe v Jimenez, 133 A.D.3d 844, 20 N.Y.S.3d 555 [2d Dept 2015]; Elshaarawy v U-Haul Co. of Miss., 72 A.D.3d 878, 900 N.Y.S.2d 321 [2d Dept 2010]; Fragale v Geiger, 288 A.D.2d 431, 733 N.Y.S.2d 901 [2d Dept 2001]; Pagano v Kingsbury, supra). Once a defendant meets this burden, the plaintiff must present proof, in admissible form, which raises a material issue of fact (Gaddy v Eyler, supra; Zuckerman v City of New York, supra; Beltran v Powow Limo, Inc., supra).
A plaintiff claiming injury within the "permanent consequential limitation" or "significant limitation" of use categories of the statute must substantiate his or her complaints of pain with objective medical evidence demonstrating the extent or degree of the limitation of movement caused by the injury and its duration (Schilling v Labrador, 136 A.D.3d 884, 25 N.Y.S.3d 331 [2d Dept 2016]; Rovelo v Volcy, 83 A.D.3d 1034 921 N.Y.S.2d 322 [2d Dept 2011]; McLoud v Reyes, 82 A.D.3d 848, 919 N.Y.S.2d 32 [2d Dept 2011]). To prove significant physical limitation, a plaintiff must present either objective quantitative evidence of the loss of range of motion and its duration based on a recent examination or a sufficient description of the "qualitative nature" of plaintiff s limitations, with an objective basis, correlating plaintiffs limitations to the normal function, purpose, and use of the body part (Perl v Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655 [2011]; Toure v Avis Rent A Car Systems, Inc., supra; McEachin v City of New York, 137 A.D.3d 753, 25 N.Y.S.3d 672 [2d Dept 2016]). Proof of a herniated or bulging disc, without additional objective medical evidence establishing that the accident resulted in significant physical limitations, is not sufficient to establish a "serious injury" within the meaning of the statute (Pommells v Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380 [2005]; Hayes v Vasilios, 96 A.D.3d 1010, 947 N.Y.S.2d 550 [2d Dept 2012]; Scheker v Brown, 91 A.D.3d 751, 936 N.Y.S.2d283 [2dDept 2012];Stevens v Sampson, 72 A.D.3d 793, 898 N.Y.S.2d657 [2d Dept 2010]; Catalano v Kopmann, 73 A.D.3d 963, 900 N.Y.S.2d 759 [2d Dept 2010]; Casimir v Bailey, 70 A.D.3d 994, 896 N.Y.S.2d 122 [2d Dept 2010]; Keith v Duval, 71 A.D.3d 1093, 898N.Y.S.2d 184 [2d Dept 2010]). The mere existence of a tear is not a serious injury without objective evidence of the extent and duration of the alleged physical limitations resulting from the injury (see Bamundo v Fiero, m A.D.3d 831, 931 N.Y.S.2d239 [2d...
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